You’ve filed your Request for Hearing and now you’re playing the waiting game, wondering what to expect next in your Social Security disability claim.   Whether you’re in Maine, Massachusetts or New Hampshire, the wait can be a long one.  In part 1 of this blog entry we’ll fill you in as to what you can expect.  In part 2, we’ll make sure you understand soup to nuts what to expect on the day of your hearing.

First and foremost, it’s important to understand that whether you request a hearing following an initial denial letter out of New Hampshire, or a reconsideration denial out of Maine or Massachusetts, the hearing itself will not take place soon.  The likely wait for a hearing is in the neighborhood of what can be anywhere from 8 to 12 months with the Massachusetts and New Hampshire hearing offices (although some hearings out of the Portland, Maine hearing office are still taking up to 14 months).    Soon after you file your request for hearing (within ordinarily 2-4 weeks of filing your request for hearing) , you will receive a letter from Office of Disability Adjudication and Review (ODAR) acknowledging the hearing office’s receipt of your file.

The initial letter from the hearing office will inform you that you will be notified as to the time and place of your hearing at least 75 days in advance of the hearing. Likewise, the letter will explain to you that in some circumstances your case can be heard more quickly and efficiently by way of  videoteleconference or what is termed a VTC hearing.   Should you agree to proceed by way of VTC, this  will mean that your case will not be heard in person before an Administrative Law Judge (ALJ).  Instead, you will appear in front of a judge by way of a video camera, much in the same way that those charged with a crime and held in jail, might make a preliminary appearance before a judge for purposes of bail.     While this process may be an expeditious one for the Social Security Administration’s  (SSA’s) purpose, as they can assign and schedule cases before judges that are in other parts of the country that might not be as busy and can hear the case more quickly, this process is quite impersonal as you can well imagine.  This is not to mention the fact that if your attorney is being asked to prepare before a judge with whom he has no familiarity, this may put your attorney and you at a disadvantage.   You will be provided with only twenty (20) days to Object to Proceeding by way of VTC and so you do not want to miss this deadline.  Our office always objects.  Continue reading

One of the most typical misunderstood requirements for purposes of establishing a Social Security Disability claim is the duration requirement.  The Social Security Act and its corresponding regulations require that one prove they are suffering from a severe medical impairment that has lasted or or expected to last 12 months or longer, or result in death.   This provision has been interpreted quite strictly, and for anybody who is considering an application for Social Security disability benefits, it’s important to pay heed to this rule or a denial is very likely to follow.

The Social Security Act defines a “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”   42 U.S.C. §(d)(1)(A).    It is important to recognize that the language of the statute is meant to exclude from entitlement conditions those conditions which are of shorter term duration, and which will allow one to return to work within a matter of months.  For example, while having back surgery (even a multilevel fusion) may constitute a severe impairment which will cause one to be out of work for a stretch of time, most such surgeries would not anticipate a recovery time of a year or longer.

The more difficult type of situation comes about with conditions that may have periods of remission (with, for example, periods of exacerbation) which require you to remain out of work for stretches of time but might allow for returns to work for stretches of time.   In such a circumstance, one may still be able to reach the duration requirement of a year or longer by establishing that the attempts to return to work are what are deemed to be unsuccessful work attempts: this is something an experienced Social Security disability lawyer will be able to evaluate for you. Continue reading

And so for years you’ve been struggling with a bad back or with stiff hands that have more and more difficult to function at work.  You’ve gotten to the point where your employer is  no longer able to accommodate your missed days missed from work, or the slow down in your production.   You may be one of those individuals that just hates going to the doctor.

Or, you may be one those individuals that’s been going to the neighborhood chiropractor for years: he treats you week after week, telling you that you have what he believes to be severe arthritis of your back or a case of degenerative disk disease and lumbar radiculopathy.  He or she suggests that  you  to go ahead and apply for Social Security disability benefits (and that they’ll be supportive of your claim).

Unfortunately, the denial comes back from the Social Security Administration (SSA) in short order and it is now time to call the lawyer to see what can be done.   This is all too familiar a scenario in our office.  Whether it’s because health insurance has been an issue, or simply because someone doesn’t believe in doctors and they can tough it out (or, perhaps, because it’s difficult to find a doctor to treat your condition in your area): too many times we’re hearing from claimants who are wondering why their severe symptoms are simply not being listened to by SSA. Continue reading

As we were discussing in part I, there are a multitude of considerations individuals need to take into account following the receipt of a favorable decision.  One of the more important considerations is how one will be able to remain in treatment and what health insurance will be covering your treatment as you move forward.

Medicare insurance entitlement (just like a senior citizen who has reached  retirement age) is available once one has been collecting Social Security Disability Insurance (SSDI) for a period of 24 months (in their 25th month of eligibility to a check).   Accepting Medicare is not required (even though one may see the premium automatically taken out: this can be cancelled with a simple phone call).   However, foregoing Medicare during this enrollment period can result in an increased cost should one choose to enroll at a later date.  If one is already receiving state Medicaid (referred to as Mainecare in Maine, MassHealth in Massachusetts and simply Medicaid in New Hampshire), one may be entitled to apply with their local Department of Human Services office or, in Massachusetts, the Department of Transitional Assistance, so as to request that the State pay the Medicare premium.  In this way, one can have both Medicare and Medicaid health insurance, with the state picking up the tab for both: in this way, Medicare pays first and Medicaid becomes secondary insurance.

Should, however, one lose their Medicaid upon receipt of a favorable decision (which happens if one’s monthly entitlement to SSDI is too high), another health insurance option available is through the Affordable Care Act (ACA),  otherwise known as Obamacare.   The discontinuance of Medicaid as a result of one’s SSDI income would be considered a qualifying event, allowing for enrollment at that time for ACA insurance.

Now that you’ve made it through the process of applying for Social Security disability benefits, it’s important to understand the steps that will take place following the receipt of a favorable decision.   Understanding the procedures which follow can help ensure there are no unexpected surprises down the road and that you are aware of all of the benefits, as well as options, available to you.

If your favorable decision is on your initial application or on reconsideration (in Maine and Massachusetts only, as New Hampshire does not have a reconsideration process and an appeal proceeds directly to hearing),  especially if the claim involves Social Security disability insurance (SSDI) alone with no corresponding Supplemental Security Income (SSI) claim,  it is very common to see that the funds will arrive first by way of direct deposit to your bank account even prior to the receipt of a written decision in your case.   In such a circumstance, the initial or reconsideration decision may be in the form a notice of award  (with no separate notice explaining that there has been a favorable decision) that will come within a week of the funds.

Assuming there are concurrent claims for both Social Security disability insurance and Supplemental Security Income, one will see that their local Social Security office will need to process the SSI claim first (given it’s a welfare claim and, thus, given priority) and may need to set up what is referred to as a pre-effectuation review conference (called a PERC by the local offices) to go over your income and assets during the time period at issue for your SSI claim so as to determine entitlement.  In such a circumstance, it can take a number of months for both the SSI and SSDI amounts to be properly determined given a multi-step process that takes place: 1) the SSI claim is processed first (blind to the amount of SSDI entitlement one may ultimately be determined to be entitled to receive) with an initial payment going out to the claimant, 2) the SSDI is determined but withheld until such time as a redetermination of the SSI entitlement can take place and 3) any overpayment is then deducted from the withheld retroactive SSDI benefits before issuance of a final payment can be made.

As you can well imagine, having handled 1000’s of Social Security disability claims for 27 years out of Maine, Massachusetts and New Hampshire, it has not been unusual for our office to face the very difficult prospect that a client passes away before we’ve been able to prevail to hearing in their case and recover the past due benefits to which they are entitled.  In many circumstances this doesn’t have to meant the end to their case:  in many such cases, we have been able to pursue the claim to a successful conclusion.   There are vast differences between how matters work for purposes of the Title II or Social Security Disability Insurance program (which is based on an individual’s earnings record) and Title XVI or the Supplemental Security Income (which is a welfare, needs based program), which we’ll set out below.

First and foremost, should one pass away while pursuing a Social Security disability claim, the first matter that will need to take place is what’s called a Substitution of Parties, which allows for what is deemed by the Social Security Administration (SSA) to be the next of kin for purposes of who may proceed with the case (and with reference to who may be entitled to receive the past due benefits that are payable up to the date of the claimant’s death).  The SSA requires that an SSA HA-539 Substitution of Parties form be filled out and that a death certificate accompany the form.

With respect to the substitution of parties, the regulations spell out the following order of eligibility: 1) to the spouse (if living in the household at the time of death or if entitled to a monthly benefit under the deceased’s earning’s record) at the time of death, 2) to any children entitled to receipt of  a monthly benefit at the time of the claimant’s death, 3) to the parent/parents entitled to receipt of a monthly benefit on the earnings record at the time of the claimant’s death, 4) to a spouse who does not meet the requirements listed option one, 5) to any children who do not meet the requirements of option 2 and 6) to any parent who does not meet the requirements of section three and 7) to the representative of the claimant’s estate.   The SSI substitution of parties rule is much stricter, given the nature of the benefit (being a welfare check, and with no dependent/family entitlement available under this program): the claim may only be pursued by the claimant’s spouse (assuming they were living in the same household as the claimant as of the date of death or during the preceding 6 months claim).  Assuming the claimant is a disabled child for purposes of an SSI claim, a substitution of party in the form of a parent who was living in the same household as the child at the time of death or during the 6 months preceding death would be the only appropriate option.  Assuming there exists an interim assistance agreement requiring repayment out of the recovery of SSI benefits, a case pending at the hearing level before an Administrative Law Judge (ALJ) may still proceed.  Likewise, while a spouse or the governmental entity holding an interim reimbursement lien interest may be the only ones entitled to recover financially in an SSI claim, it may be beneficial for the spouse to pursue the SSI claim for purposes of a favorable decision so as to allow for automatic entitlement to Medicaid  (Mainecare in Maine, Medicaid in NH and Mass Health in Massachusetts).

The intricacies of the Social Security disability are extensive and endless.  Without the benefit of good legal advice, you can end up losing thousands of dollars even at the end of your Social Security disability case.   This is another example of why going it alone can cause one to have regrets later on.

Whether you live in Maine, Massachusetts or New Hampshire, Social Security disability claimants are many times faced with the need to apply for welfare assistance in order to make ends meet.  Whether it’s transitional assistance through the state,  such as Emergency Aid to the Elderly, Disability and Children (EAEDC) in MA, or the need to apply for general assistance through the City of Portland, Maine one will be required to sign what is called an interim reimbursement lien agreement and apply for Supplemental Security Income (SSI) in order to qualify for this interim cash assistance.   What is expected by the state or local entity is that at the end of your Social Security disability case, if there is recovery of SSI, then the first check for retroactive benefits will be going back to the state or town/city to repay them for the assistance they have paid out.

Interestingly, such reimbursement is only payable out of SSI benefits and not out of Social Security disability insurance benefits (SSDI). It is important to understand that when a claimant receives a favorable decision and has both SSI and SSDI claims pending, the SSI claim is always processed first.  Because of this, the processing of the benefits does not take into account and remains blind to whether the claimant will be entitled to retroactive SSDI benefits that may in fact preclude entitlement to any SSI benefits at all.

The Social Security disability system is meant to assist those who remain long-term disabled for a year or longer.  While we many times focus on what is required to prove entitlement from a medical standpoint, we many times encounter potential clients who are seeking benefits for a long term disabling condition but do not meet the additional requirements to meet either the Social Security disability insurance (SSDI or Title II) or Supplemental Security Income (SSI) requirements.  Below is a story of one such individual who recently contacted our office to determine why they were having a problem collecting a benefit.

Janice is a woman in her late 50’s from New Hampshire who has been suffering from a multiple chemical sensitivity disorder for many years which has hindered her ability to go out in public given the impact the fumes of various chemicals will have on her breathing (and which will otherwise cause her to become quite ill).  She worked for a number of years as a school bus driver until such time as the fumes from the bus itself became problematic for her.

Janice has seen a number of specialists at some of the most well-known and well-respected medical centers in Massachusetts and New Hampshire for her condition.   She has remained aggressive and persistent with her treatment.   Notwithstanding this fact, she has not been able to find any answers that have allowed her to return to work.

When pursuing a Social Security disability claim, it is important to understand that the disability determination process is not a perfect one. The majority of individuals are denied on their initial application, and, at the end of the appeals process, only 1 in 3 are ultimately approved for receipt of disability benefits.   When a claimant receives a partially favorable decision of their claim, which is not entirely uncommon, there are some very important considerations to take into account before deciding whether you should appeal that decision.  A wrong decision can prove to be devastating.

Receiving a partially favorable decision typically involves receiving a decision that means the Social Security Administration (SSA) has found you are “disabled” as that term is defined under Social Security’s rules, but that you are being found disabled with an onset date different than the one you alleged on your application for benefits.    For a Social Security disability lawyer, properly advising a claimant as to whether to appeal that decision is not always an easy one.

Initially, it may be clear that because of the need to show that one has remained disabled from a “severe medically determinable impairment” that either has met a medical listing of impairment or had remained severe and disabling such that the individual will remain disabled from all forms of gainful employment for what will be or what has been a year or longer (or is likely to result in death) that either the condition was not diagnosed or treated until a later point in time (and so the proof of the condition simply does not exist at an earlier time).  This may make the decision whether to appeal much easier.

As we were discussing during our last blog post, Maine, Massachusetts and New Hampshire Social Security disability applicants are facing new evidence rules beginning March 27, 2017 that will  effect the manner by which the Social Security Administration reviews medical opinions from one’s medical treatment providers.    In addition, it is important that disabled Veterans who have been found disabled by the Veteran’s Administration and who may be considering applying for Social Security disability benefits, will likewise see a change in these rules that will adversely impact their Social Security disability application.

For many years, the Social Security regulations provided that acceptable medical sources (which were determined to be the only providers sufficiently skilled and educated enough to establish one’s medical impairments) were limited to the following medical providers: licensed physicians (medical or osteopathic doctors), licensed or certified psychologists (including school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing intellectual disability, learning disabilities, and borderline intellectual functioning only), licensed optometrists, licensed podiatrists and qualified speech pathologists.   The revised regulations, which will apply to claims filed on March 27, 2017, reflects the understanding that the medical provider landscape has changed dramatically over the course of the last few decades as a result of the managed care rules set forth by one’s insurance.

It has become more difficult over the years to see an actual doctor, and medical care is many times left to nurses or physician’s assistants: we see  this especially in the more rural areas of Maine, Massachusetts and New Hampshire, where finding a doctor that will see you is almost impossible unless you require urgent medical care.   This new reality in medical delivery, while somewhat acknowledged by the newly promulgated regulations, does not receive its full due and will leave many patients/claimants wondering why their medical provider is deemed capable enough of treating their condition but incapable of expressing an opinion that will carry much weight with the Social Security Administration.